Government seeks powers to mandate minimum service levels during strikes

The Government has published the Strikes (Minimum Service Levels) Bill, which would give it powers to impose a “basic level of service” in “crucial sectors” when strike action takes place.

It plans to set minimum service levels for fire, ambulance and rail services, following consultation which is expected shortly. For the other sectors specified in the Bill – comprising other health services, other transport services, education, nuclear decommissioning and waste management, and border security - the Government expects to continue to reach voluntary agreements. However, minimum service levels could still be imposed as a fall-back option.  

The sectors specified in the Bill correspond with the “important public services” defined in the Trade Union Act 2016. That Act enabled the Government to make regulations requiring a 40% yes vote from certain groups of workers before they can lawfully take strike action. The Bill adopts a similar approach: where minimum service levels are imposed, regulations would define the categories of workers who could be told to continue to work in event of a strike to ensure a defined minimum level of service. Failure to comply with a “work notice” would mean that a worker would be treated as taking part in unofficial action. As a result, they would lose their protection against unfair dismissal and their union its immunity from being sued by the employer.

The Bill is wider in scope than its predecessor, the Transport Strikes (Minimum Service Levels) Bill, which was introduced in the House of Commons in October 2022 and which has now been abandoned. In addition, rather than providing the statutory underpinning for enforceable voluntary agreements, the new Bill would confer powers on the Secretary of State to impose them without agreement.

As currently drafted, the whole of the Bill would become law the day it receives Royal Assent. In addition, it enables minimum service levels to be imposed even if the industrial action ballot took place before the Bill became law, or the necessary regulations were not made until after the notice of strike action was given to the employer.

The Bill would apply to the whole of Great Britain, but not Northern Ireland. Last week's press release explains that the Government is engaging with the devolved administrations “throughout this process”.

There is likely to be considerable political and other opposition to the Bill. Even assuming a smooth passage through Parliament, it seems unlikely that the new legislation will become law before the current round of disputes is over. In addition, as the Government’s risk assessment (published in relation to the Transport Strikes Bill) states, a “significant unintended consequence of this policy could be the increase in staff taking action short of striking”. We have already seen that voluntary overtime bans are capable of causing significant disruption, for example in the transport sector.

Some may therefore see the Bill as an attempt – misguided or not – to put more pressure on the trade unions involved in the current public sector disputes to modify their demands, rather than a considered attempt to make workable changes to the UK's exceptionally complex legislation on industrial action.

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